Express Terms - Contract

EXPRESS TERMS * * General Rule o If the contract is in writing and is signed by both parties, whatever is in the contract are the terms that can be legally enforced SS? L'Estrange v Graucob * "this agreement contains all the terms and conditions under which I agree to purchase the machine specified above, and any express or implied condition, statement or warranty statutory or otherwise not stated herein is hereby excluded" o bound by this fine print clause as it was in the original contract - NO BREACH OF WARRANTY o If a document contains contractual terms, and is signed, if there is no fraud or misrepresentation, it is enforceable even if they have read it in the document or not SS? Toll (FGCT) v Alphapharm EXCEPTIONS: o Where the document signed is not contractual in nature SS? Person who signs doesn't realise it is a contract et * Curtis v Chemical Cleaning and Dyeing Co * DJ Hill v Walter H Wright o Contents are misrepresented * Curtis v Chemical Cleaning and Dyeing Co o Plea of non est factum (if you signed a contract by mistake - did not have the capacity to enter into an agreement) * Petellin v Cullen Incorporating Written Terms: * Terms on a sign, docket, ticket etc cannot be part of a contract unless the other party is given reasonable notice of the incorporated term o Balmain New Ferry Co v Robertson * Notice must be given before or at the time of entering into the contract o Oceanic Sun Line Shipping Co v Fay o Olley v Marlborough Court Ltd [1949] 1 KB 532 o Baltic Shipping Company v Dillon SS? In this case, Mrs Dillon was not bound by the conditions that limited the liability of the company as she did not have sufficient notice PAGE 75 * * * * * * A party must have either knowledge or reasonable notice of the terms is he to be bound o Causer v Brown [1952] VLR 1 If the document is one that a reasonable person would expect to contain contractual terms, it is enough that the document be presented o This will be sufficient notice SS? Mendelssohn v Norman What is reasonable notice will depend on the circumstances of the particular case The notice must be likely to come to the attention of the other party o Thornton v Shoe Lane Parking Unusual terms require special notice o Interfoto Picture Library v Stiletto Visual Programs Electronic documents and websites terms and conditions o eBay International AG v Creative Festival Entertainment By Reference: * Smith v South Wales Switchgear Co Ltd * Thompson v London, Midland & Scottish Railway Co By Course of Dealing: * Where the parties have concluded several contracts on similar terms agreed in the same manner, this may have the effect of incorporating the terms into a subsequent contract between them o SHOW: SS? A consistent and sufficiently long course of dealing SS? Course of dealing must be regular and uniform SS? Evidence of assent to the terms (no objection) * Balmain New Ferry Co v Robertson o Regular traveller - knew the Terms and Conditions * Henry Kendall and Sons v William Lillico and Sons Ltd PAGE 76